FROM THE
RECORDS OF
OLD LISBURN
AND THE
MANOR OF KILLULTAGH.
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Edited by JAMES CARSON.
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LXXIX.
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SEYMOUR V. WALLACE.
FIRST TRIAL.
BELFAST ASSIZE SPECIAL JURY, JULY, 1871.
Notes from Address by Counsel for Sir Richard Wallace.
(Continued.)
That is the will of 1838, or, at least, the material portion of it; and, at the time of its execution, they would pause to consider the circumstances of the Earl of Yarmouth. His father was alive at that time, and he had nothing to bequeath or devise but his Irish estates, for the English estates could not have been devised. His father at that time being living, he might observe that the reversion of the Irish estate was not very valuable, because they knew that during the lifetime of an old man of sixty, the reversion at his death is not a commodity easily selected in the market; and if they took out of this reversion the £30,000 charged to it, and a £12,000 a year to Mrs. Idle, he thought he might say that devise of those Irish estates was certainly not very considerable. It is important to recollect that Lord Yarmouth had nothing to devise but Irish estates, for the deed of 1802, was superseded by that of 1837. That being so, that will having been thus executed in 1838, the third marquis died in 1842. He had said before that Mr. Wallace had been living on the amicable terms he had described with the fourth marquis from his childhood; while, as time progressed, the affection displayed with the Marquis of Hertford was increasing -- in point of fact, as far as he could judge from what he had seen and read of his care, that the affectionate communion of the two human beings could not be closer; and that the fourth Marquis of Hertford had a generous and disinterested affection for his mother and for Richard Wallace before all others in the world. Now, at this time Lord Henry Seymour, who was the brother, and who was heir-presumptive to the title and English estates, supposing his brother to die unmarried, was tenant-in-tail of the English estate, and, therefore, must be absolute master.
Lord Henry Seymour, being at the time of the settlement in 1802 unborn, he must necessarily be a tenant-in-tail. That is what we mean. The fourth marquis was tenant for life, and, in default of his male issues, Lord Henry Seymour was tenant-in-tail. Lord Henry, under the will of 1838, would be entitled to the life interest of the Irish estates, and the life interest only. He was unmarried also, and died unmarried in 1859.
The fourth marquis been absolutely entitled to do what he liked with the Irish estates, and, as he said before his affection for Mr. Richard Wallace having increased as time progressed, he executed but codicil on the 7th June, 1850. Here, then, is the codicil, and not only was a distinct in its directions, but it showed the deep sense of thankfulness and affection which he entertained towards Mr. Wallace:--
"This is a further codicil to the last will of me, Richard Seymour Conway, Marquis of Hertford, K.G., which bears date on or about the 21st June, 1838. I hereby revoked the bequest contained in my will of the residue of all my real and personal estates to my brother, Lord Henry Seymour, and to reward, as much as I can, Richard Wallace for all his care and attention to my dear mother, and likewise for his devotedness to me during a long and painful illness I had at Paris in 1840, and on all other occasions, I give such residue to the said Richard Wallace, now living at the Hotel des Baines, Boulogne-sur-Mer, in France, and whose domicile previous to the revolution of February, 1848, was in my brother's house, Rue Faitbout, No. 3, Paris (formerly No. 1), absolutely."
It is evident, then, that there is no devise co nomine either of personal or real estate but that contained in that codicil. The Irish estates, the only ones dealt with in the will of 1838, have passed to Mr. Richard Wallace. Upon the legal effect of this document this case will turn to a great extent, and with the construction of these documents the jury had not much to say -- that having almost entirely devolved upon his Lordship, who will direct them in point of law, and that will be for others to overturn, if they can, what might be done in this court. He might observe that the marquis lived till 1870 -- his brother, Lord Henry, died in 1859 -- and the result was that, whatever be the legal operation of the will and codicil, there can be no doubt that the intention was to give to Mr. Wallace the Irish estates. Or his death English estates, with the title, went to the present marquis, and he is in possession altogether; but he has no claim whatever on this Irish property. The fifth marquis is a descendant of the fifth son of the first marquis. He is a great-grandson of the first marquis, being the second cousin to the late marquis. In the will Sir George Seymour is described as the eldest son of Lord George Seymour, who was dead. He was the seventh son of the first marquis.
I take the codicil first. It says: "I hereby revoke the bequest in my will of the residue of all my real and personal estates to my brought to my brother, Lord Henry Seymour." Let us see what that deals with -- "the residue of all my real and personal estates" -- the word estates being in the plural number. Prima facie we must take it that we deal with some real estate. We are entitled to throw the onus on my friends opposite to show your lordship that real estate is not to mean real estate, but, in fact, it is to be nothing -- that that word is to be struck out of the codicil. "The bequest contained in my will of the residue of my real and personal estates." We say that that plainly is a revocation of a devise or bequest. Nothing will turn on that now material, because it is a holograph codicil drawn in the testator's hand-writing. Looking at the will, we find but one devise dealing with real estate, and that is the Irish estate. I apprehend that no case can be shown in which the word real estate, particularly when we find real estates in the plural, and when we have real and personal estates used in contradistinction to each other, has been expunged from the will, unless they show a case where it is impossible to apply to any one at all. The other side contended that as it said the residue of my real and personal estates, and as there was no gift of the residue of the real estate, it could not apply to real estates.
I will show that the word "residue" is not an erroneous description. But supposing it to be an erroneous description, it must be rejected in the same way as in the case put about the black and white horses, which is so well known. It is quite established law that if a testator bequeathes his black horse, and he happens to have only one horse, and that a white one, the false description of the animal will not affect the matter, and the white horse will pass, because it is the only subject-matter that could be dealt with. Let us see if that is such a description as will be contended for. Turn back to the will, and recollect that the other estates -- the English estates -- were settled, and that he had nothing to devise but this reversion of the Irish estates, you will find the following:-- "I given and devise all my castles, &c., and real estates whatsoever in Ireland to which I am now, or shall, or may at my deceased be seized or entitled," &c. Is it possible for any devise to be even in terms more completely a residuary devise than that? Recollect that the word residue does not occur in the will at all, and I am pointing out, and venturing humbly to press, that the form of the devise is in itself residuary. I would go the length to say, if necessary, technically residuary; but, at all events, residuary sufficiently within the popular sense to make the language of the codicil no misdescription. If you compare the description given of those estates in the devise with the language of the bequest of the personalty, you will see how closely they resemble each other.
Counsel then read the language devising the personalty, and pointed out the similarity with that and the words conveying the real estate, and went on to say that the language in describing the devise of the Irish estates was residuary, even technically inept character, and sufficiently so to justify a non-professional man like the Marquis of Hertford to use the word "residue" in the codicil. The first use was a term of 300 years to provide for the very same liabilities which the personal estate was made subject to. It was only subject to whatever might be necessary for paying of the annuity legacies and testamentary expenses -- in point of fact, at the time the will was made the real estate was the only fund out of which the £12,000 or the £30,000 could be realised, and was there any misdescription in the testator calling that in his codicil a residue, it being nothing but the residue, after providing for all those outgoings? Lord Henry got for his life so much of the Irish estates as would remain after the providing for the £30,000 and £12,000 a year, and the debts and testamentary expenses show that, in point of fact, it was only a residue. But he rather took it now as if the words were simply, "I revoke the bequest contained in my will of the residue of my real and personal estates." It went further, even. In added -- "To my brother, Lord Henry Seymour." Where were they to find words to satisfy that unless they went to the Irish estates? The plain meaning was: "Whatever real and personal estate I gave by my will to my brother, Lord Henry Seymour, I revoke, and I will give the said residue to Richard Wallace."
But, in addition, the codicil said: "And to reward, as much as I can, Richard Wallace for alk his care and attention to my dear mother, and likewise for his devotedness to me during a long and painful illness I had in Paris in 1840, and on all other occasions, I give such residue to the said Richard Wallace, now living at the Hotel des Baines, Boulogne-sur-Mer, in France," &c. There they have a declaration from the testator, drawn up in his own writing, that he wished to do all he could for Richard Wallace. His brother would seem to have been a wealthy man; his brother was provided for as marquis was exactly in the manner in which the present marquis is; he was absolutely entitled to dispose of the Irish estates in whatever way he pleased. But the testator said in the codicil, "I want to reward as much as I can Richard Wallace." Was not that a declaration that he wanted to give him as much as he could? Why was it not to apply to what they saw it plainly could apply to -- the Irish estates given to Lord Henry Seymour, who died unmarried not long after -- and very probably the marquis knew he never would be married. It appeared to him (counsel) that it was impossible, consistently with the ordinary rules of construction, to leave out the word "real," and not only that, but to do so it would not only be necessary to reduce personal estates to the singular number and read the will thus: "I hereby revoke the part contained in my will leaving the residue of my personal estate to my brother."
He admitted at once that if the Irish estates were left to go with the title there would be certainly an argument for improbability, though, indeed, it would not be a very strong argument either for a construction such as that; but when it was recollected that in the events which had occurred, for once and for ever those estates were severed from the title, the ingenuity of his learned friends could not suggest any reason why this would be allowed to go to distant collateral branch of the Seymour family, and why the marquis did not carry out the intention which he expressed of doing all he could for Richard Wallace, who had been so kind to him. He contended that the gift to be revoked was accurately referred to, and that the legatee named by the will was actually named in the codicil, and it would hardly be disputed that if he were right in his contention that the codicil revoked the devise of the Irish state to Lord Henry Seymour, it revoked the whole lot of limitations afterwards. His Lordship would recollect that it was only a life estate was given to Lord Henry Seymour by will, but in the codicil the testator used the word absolutely, showing conclusively that he intended to give them entirely to Richard Wallace, and not merely a life interest in them.
His Lordship (Mr. Justice O'Brien) -- Richard Wallace, the claimant, has brought an ejectment, and the ordinary rule is that, for the plaintiff to proceed, he must establish his title to the satisfaction of the Court. Without pronouncing any opinion, it appears to me there are difficulties in the plaintiff's construction of the will. There may be also difficulties, and there are, in the defendant's construction; but there are difficulties in the plaintiff's construction which, in my mind, preclude me from at present from saying anything more than that I don't think the claimant has satisfied me the will bears the construction he puts upon it. In saying that, I hold myself at perfect liberty, when the case comes before the upper Court, as if I had never heard the case before, to have that question rediscussed; and I have no such impression as would preclude me from forming an opinion in favour of the plaintiff. But I think the more regular and evident course, and the one more generally adopted in ejectments where the plaintiff does not make out his case clearly, is to direct a verdict for the defendant.
The jury, by direction of his Lordship, then brought in the verdict for the defendant, Sir George Hamilton Seymour.
His Lordship -- I will enter the following memorandum in my notes: "I direct a verdict for the defendant, reserving, by consent, liberty to the plaintiff to move the Court to enter a verdict for him, if the Court should be of opinion that the plaintiff is entitled to it on the will and codicils, no question being raised as to the truth of the evidence; with liberty for the plaintiff, if he thinks fit, to take a bill of exceptions on the ground that the judge should not have directed for the defendant."
(Next Week: Second Trial.)
(This article was originally published in the Lisburn Standard on 19 April 1918 as part of a series which ran in that paper each week for several years. The text along with other extracts can be found on my website Eddies Extracts.)
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